In re Kelsey

• Decision Date: 21 December 1895
• Docket Number: 655
• Court: Utah Supreme Court
• Parties: IN THE MATTER OF THE APPLICATION OF LEWIS P. KELSEY FOR A WRIT OF HABEAS CORPUS

43 P. 106

12 Utah 393

IN THE MATTER OF THE APPLICATION OF LEWIS P. KELSEY FOR A WRIT OF HABEAS CORPUS

No. 655

Supreme Court of Utah

December 21, 1895

Original application by Lewis P. Kelsey for a writ of habeas corpus.

Writ denied.

Messrs Dickson, Ellis & Ellis, for petitioner.

In our opinion, but two questions are presented for consideration First--Was the judgment or decision of the court requiring the defendant in the case of Kelsey v. Kelsey to pay temporary alimony, suit money and counsel fees, appealable immediately by said defendant. Second--If it were so appealable, did the perfecting of said appeal and the filing of an undertaking to stay proceedings pending said appeal deprive the lower court of the power to take any steps to enforce payment or satisfaction of the judgment or decision appealed from while the appeal therefrom was pending and undetermined? That an appeal may be prosecuted immediately from such a judgment or decision has been repeatedly decided. In the case of Sharon v. Sharon, it was so held after thorough consideration of the question by the court. See 67 Cal. 185, read 195 et seq. In that case it was said that an order for the payment of alimony and counsel fees is in the nature of a final judgment; that it possesses all the essential elements of a final judgment; that nothing remains to be done except to enforce it, and for that purpose an execution might issue and be proceeded on as if the judgment had been rendered in an ordinary action for the recovery of a specific sum of money. See, also, 2 Comp. Laws 1888 of Utah p. 375, § 3674.

Upon a petition for a rehearing in the case of Sharon v. Sharon supra, the question of the appealability of such an order was again maturely considered by the court and its decision adhered to, the opinion upon rehearing being delivered by Ross, Judge. The decision there made was followed in the case of Turner v. Turner, 80 Cal. 141, and White v. White, 86 Cal. 212. See, also, Daniels v. Daniels, 9 Colo. 133; Blake v. Blake, 80 Ill. 523; Foss v. Foss, 100 Ill. 576; Hecht v. Hecht, 28 Ark. 92; Lochnane v. Lochnane, 78 Ky. 467; Blair v. Blair, 74 Iowa 311. See, also, Collins v. Collins, 71 N.Y. 269; Forgay v. Conrad, 6 How. (U.S.) 200; Trustees v. Greenough, 105 U.S. 527, 531. (We would invite special attention to the case last cited and the statement of facts therein contained.) In each of the foregoing cases it was decided that an order, judgment or decision, such as we have to deal with here, was a final judgment within the meaning of a constitution or statute providing for appeals from "final judgments," notwithstanding the judgment was one which did not finally dispose of the merits of the action, or dispose of all the issues involved, and in each it was recognized that such an interpretation of the term "final judgment," thus used in the constitution or the statute, was not only essential but indispensable for the proper protection of litigants.

In Blake v. Blake, 80 Ill., the court, speaking of a similar decision, says: "Such a decree does not seem to us to be merely interlocutory. It is more in the nature of a final decree, and if no appeal lies, this case affords an instance of a money decree against a party from which no relief can be had, no matter how unjust or oppressive. This ought not to be. It is no answer to this position to say, defendant can have this decree against him reviewed on appeal or error, after final decree in the original cause. Of what avail would that privilege be to him then? The litigation might be protracted and years elapse before any final decision could be reached. In the meantime, he has been imprisoned for disobedience to the decree, or his property under process of law been subjected to the payment of the sum decreed. Nor does the fact that an appeal if allowed, impose any hardship not incident to money decrees from which appeals may be prosecuted. On the theory that alimony is for the immediate benefit of the wife, to enable her to prosecute or defend her suit against her husband on terms of equality, the only serious result would be to delay the litigation until the propriety of the decree for temporary alimony could be determined in the appellate court. On the contrary, if an appeal should be denied, it might subject defendant to very great hardship in many cases, as the sequel will show. It is apprehended there can be no decree against the party that will work a deprivation of his property or liberty, from which no appeal or writ of error will lie."

The undertaking on appeal referred to in the statement of the case is sufficient to operate as a stay of proceedings under the statute. Sharon v. Sharon, 67 Cal. 185, 220. Did then the taking of the appeal and the giving of the stay bond so far oust the court below of jurisdiction that it could not, pending the appeal, take any steps to enforce satisfaction of the decision appealed from? We submit that it did, and that the order thereafter made adjudging petitioner guilty of contempt and committing him to custody was an order which the lower court had not the jurisdiction or lawful authority to make. See 2 Comp. Laws, p. 365, § 3642; Pennie v. Superior Court, 89 Cal. 31; Draper v. Davis, 102 U.S. 370; Keiser v. Farr, 105 U.S. 265. See, also, Ex parte Orford, 102 Cal. 656.

Mr. C. S. Varian, contra.

The principal case cited in support of petitioner's contention is Sharon v. Sharon, 67 Cal. 185. In this case the order for suit money and alimony was made after the case had been heard, and just three days before the final decree was entered. Appeals from the order and decree were before the court, and an order to show cause why all proceedings upon the judgment and order should not be stayed pending the appeals was obtained. Respondent also moved to dismiss both appeals; the one from the order on the ground of there being no appellate jurisdiction in divorce cases. The court stayed the proceedings and sustained its jurisdiction in both appeals.

It may be observed that the order for suit money and alimony was in fact a part of the final decree. True, it was a separate order in the sense of being made at a different time and before the decree was entered. Yet it was based upon the facts found and conclusions rendered, and was simply incident to the decree. This case was not within the reason of the rule governing applications for suit money, etc. The wife had been able to try her case, and to live while it was being tried without being alimented from the faculties of her husband. The third paragraph of the syllabus states the order to have been made for temporary alimony pendente lite, but the next paragraph shows that the order was for permanent alimony in accordance with Cal. Code. Deering's Civil Code, § 139. The order for counsel fees was made at the end of the litigation and was as before stated, really an incident to the final decree. It would seem that the court might well have treated the appeals as being, in fact, but one, and the manifest attempt of the trial court to divide the judgment as evasive and futile. The results sought, i. e., a review of the determination as to suit money and alimony, and a stay of proceedings, pending decision, would have been accomplished just the same, and the court would not have strayed from the beaten path to decide a question not necessarily before it. But it did decide the question, and put an interpretation upon the language of the statute, which is in violation of all rule.

The dissenting opinion of Justice McKee in this case makes clear the errors of the majority's reasoning and states the law. A number of cases cited in support of the contention of petitioner. In Daniels v. Daniels, 9 Colo., the main action was to obtain a decree annulling articles of separation. A separate petition for alimony pendente lite was filed in the cause. The court said: "The latter is clearly a separate and independent relief, and requires the entry of a separate judgment." The statute (cited) gave appellant jurisdiction "over all judgments and decisions not only in all civil actions, but in proceedings of a special or independent character." Colo. Stat. 1885, p. 350; 9 Colo. p. 39. In Blake v. Blake, 80 Ill., the appeal was from a "decree" (as stated in the opinion) awarding suit money to defray the expenses of defending another appeal from an order committing appellant for contempt for noncompliance with a previous "decree" for suit money. The court say that the question raised has never been passed upon by it, but "upon first impression" the appeal will lie, and further, that there can be no decree against a party that will deprive him of his property, etc., without an appeal or writ of error, and that the court has always assumed jurisdiction to review action making allowances as alimony, etc.

Citing Blake v. Blake, 70 Ill. 518. It is needless to remark that the statement concerning the existence of appeals in all cases must be an inadvertence, since the court could not fail to recognize the fact that the right of appeal depends entirely upon the statute law. But the case cited as authority for the practice of the court was an appeal from a final judgment and order denying a new trial, after verdict and the allowance then reviewed was embraced in the final decree. The case (next cited), Foss v. Foss, 100 Ill. 579, was an appeal from a "decree" awarding temporary suit money. The question of appeal from such a "decree" (made upon separate petition) was not presented nor decided, except upon the theory that the discretionary action of the court below was not subject of review. This the court does decide and nothing more. In support of its decision it relies upon Blake v. Blake, supra, already considered, and Foote v. Foote, 22 Ill. 425. This...